This matter is before the Court on four motions: Defendant Quad Graphics, Inc.'s ("Quad") motion for summary judgment and to bar Plaintiffs' experts [Docket Item 63]; Defendants Aramark Uniform & Career Apparel, Inc. and Aramark & Career Apparel, LLC's (collectively referred to as "Aramark") two motions for summary judgment [Docket Items 59 and 64]; and Quad's motion to preclude Plaintiff's Affidavit dated July 19, 2011 [Docket Item 78], which was joined by Aramark. Quad also filed a motion against Aramark to compel or enforce the Indemnification Agreement [Docket Item 65] which has been held in abeyance pending the outcome of the above motions. Plaintiffs Brian and Judikaelle Steele have filed opposition to all motions. The court heard oral argument on February 14, 2012.

II. BACKGROUND

A. Statement of the Facts

The instant action arises out of injuries suffered by Plaintiff Brian Steele ("Plaintiff" or "Steele") while working as a substitute truck driver for Defendant Aramark Uniform & Career Apparel. Defendant Aramark is a corporation engaged in the business of leasing, supplying, delivering, cleaning and transporting of business and industrial uniforms and other cloth products to and from businesses and other organizations.

Defendant Quad is a printing company and uses Aramark's services to launder its print shop towels. During his time as a substitute truck driver, Plaintiff Steele transported used print shop towels from Quad's facility in West Virginia to Aramark's facility in New Jersey to be laundered.

Plaintiff Steele has worked for Aramark since July 2004, when Aramark purchased his former employer, U.S. Uniform, for whom he had worked since November 2000. (Statement of Facts ¶ 1.) Steele is employed as a "route jumper" or substitute truck driver. Id.

Between 2007 and 2009, Steele would occasionally drive the route to Quad Graphics in Martinsburg, West Virginia when the regular route driver was unavailable. (Statement of Facts ¶ 2.) Steele operated the Quad Graphics route on a normal basis (two times per week) for five months, from April 1, 2007 until August 31, 2007. (Statement of Facts ¶ 3.) In August 2007, Steele was diagnosed with nephrotic syndrome. (Statement of Facts ¶ 4.) Steele continued to operate the Quad Graphics route on an "as-needed" intermittent basis until 2009. (Statement of Facts ¶ 5.)

As part of Steele's route responsibilities for Quad Graphics, Steele maintains that he retrieved the print towels, which he alleges were soaked in chemicals, including toluene, in 55-gallon drums. (Statement of Facts ¶ 6.) On each trip, Steele would spend four to five hours in the Quad facility wherein he would unload the clean print towels and collect the toluene soaked towels by emptying drums that were only partially full into others until he had full drums to take back to Aramark. (Steele Dep. 97:20-98:2 and 162:21-163:5.) The drums were then loaded into the back of his delivery truck which had open airflow between the storage compartment and the cabin. (Steele Dep. 44:11-45:9.)

Steele alleges that the lids to the drums were defective and could not be properly sealed which resulted in them fitting loosely on the top. (Statement of Facts ¶ 8.) The drums that transported the print towels from Quad's facilities to Aramark were provided by Aramark. As a result of the loose fitting lids, Steele testified that during his three hour drive from the Quad facility in West Virginia to the Aramark facility in New Jersey, he smelled a strong chemical odor and experienced headaches and lightheadedness. (Steele Dep. 9:20-96:6.)

Steele alleges that he reported to Aramark that the print towels had an odor that caused him headaches during the Quad Graphics route drive in July 2007. (Statement of Facts ¶ 9.) Mr. Steele spoke to one of his supervisors at Aramark, Richard Bubser, and complained about the toluene odor and the headaches he experienced while transporting the towels to and from Quad. Mr. Bubser told him that everything was fine. Mr. Steele accepted Mr. Bubser's statement and did not question the toluene odor or the headaches again. (Steele Dep. 94:20-96:6.)

In August 2007, Plaintiff Steele was diagnosed with Focal and Segmented Glomerulonephritis ("FSGS") which has developed into End Stage Renal Disease requiring dialysis treatment.

In July of 2009, Steele received a pamphlet from Aramark called "What's the Big Deal about Print Towels: The Do's and Don'ts of Print Towel Transport and Processing." (Pl.'s Ex. A and Steele Dep. at 59:18-23.) This document explained Aramark's policy for handling solvent soaked print towels and informed employees of the danger of exposure to solvents. (Pl.'s Ex. A.) The document also explains how print towels should be transported in "sealed and covered" containers. Id. Prior to receiving this pamphlet in July 2009, Steele did not receive any training from Aramark on how to transport print towels safely or about the dangers of handling solvents. (Steele Dep. 155:16-156:15.)

The Plaintiff also filed a claim petition with the New Jersey Division of Workers' Compensation seeking Workers' Compensation benefits. (Aramark Ex. C.)

B. Procedural History

On July 20, 2009, the Plaintiff filed this lawsuit in the Superior Court of New Jersey Law Division - Camden County. [Docket Item 1.] The case was removed to federal court on the basis of diversity jurisdiction. [Docket Item 1.]

In Count I of the complaint, Steele alleges that Aramark and Quad acted intentionally, willfully, wantonly, and/or with callous indifference by not warning Steele or employing reasonable safety measures to protect Steele from exposure to hazardous chemicals endemic to his job. The second count alleges Aramark and Quad were negligent in failing to employ reasonable safety measures, and/or to apply industry standards of safety, in protecting plaintiff from exposure to hazardous chemicals endemic to his job. Count III alleges the defendants conduct was outrageous and shocking to the conscience whereby the Plaintiff demands punitive damages. Count IV is a loss of consortium claim brought by Steele's wife, Judikaelle Steele. [Docket Item 1-1.]

The Defendants then filed their answers to the complaint and subsequently met with Magistrate Judge Schneider for a scheduling conference. A scheduling order was entered which provided that pretrial factual discovery should be concluded by June 30, 2010 and Plaintiffs' expert reports and expert disclosures were to be served by July 30, 2010 and the Defendants expert reports and expert disclosures were to be served by August 31, 2010. [Docket Item 14.] The Plaintiff was then deposed on May 6, 2010.

Magistrate Judge Schneider entered an amended scheduling order extending the deadline for factual discovery until October 29, 2010 [Docket Item 40.] Judge Schneider also extended the deadline for expert reports and depositions for both parties. The expert reports and depositions were to be concluded by June 30, 2011. [Docket Item 50.] The Plaintiffs served four expert reports on December 31, 2010. The Defendants served five expert reports by March 4, 2011. Five expert depositions, which included three of the Plaintiffs' experts and two of Quad's experts, were conducted by June 23, 2011.

On June 29, 2011, Plaintiff's counsel for the first time advised in a letter that Plaintiff Steele was now alleging there was free liquid in the drums of used towels. On June 30, 2011, Plaintiff's last expert was deposed.

Judge Schneider conducted a telephone hearing on July 14, 2011 regarding the Plaintiffs' late amendment to discovery and while Judge Schneider permitted the Plaintiffs to amend their discovery with an affidavit, Judge Schneider also allowed the Defendants to preserve their right to move to bar the proposed new discovery from trial since none of the experts in the case were made aware of this factual allegation. [Docket Item 57.]

On July 18, 2011, Defendants' last expert deposition was conducted. On July 19, 2011, Plaintiff Steele submitted his affidavit stating he observed liquid in the drums.

Subsequently, the instant motions for summary judgment and motion to bar Plaintiff's July 19, 2011 affidavit were filed.

Defendant Quad has moved to strike Plaintiff's Affidavit dated July 19, 2011 ("Affidavit"). Defendant Aramark has joined in this motion. The Plaintiff submitted his July 19, 2011 affidavit in opposition to Defendant Quad and Defendant Aramark's motion to bar Plaintiffs' experts and motion for summary judgment. [Docket Item 75.] This opposition was filed by the Plaintiff on November 7, 2011.

The Defendant moves to strike the Affidavit because the Plaintiff averred for the first time since this litigation was filed that there was liquid toluene in the transport drums. This new fact was presented seven months after fact discovery ended and after all expert reports were served and many of the experts were deposed. This fact is significant because it alleges a violation of West Virginia Shop Towel Policy which exempts print towels from hazardous waste regulations if all liquid from the shop towel is removed so that no more than one drop remains for removal. This is called the "one drop rule." The Plaintiff has not provided any citation for this regulation but provides a copy of the policy as an exhibit. (Pls.' Ex. E.)

With the addition of this new fact alleging liquid toluene was present in the drums, the Plaintiff can establish negligence per se. The Plaintiff will be able to show that the West Virginia "one drop" regulation was in place and that Quad violated this regulation. The Plaintiff will then be able to argue he was then injured as a result Quad's regulatory violation.

The Defendants move to bar the Affidavit pursuant to Fed. R. Civ. P. 37 and Fed. R. Civ. P. 26. Specifically, the Defendants argue that a party is required to supplement its Rule 26 disclosures and answers to interrogatories if the answers given were incomplete. Fed. R. Civ. P. 26(e)(1) and (2). The Defendants argue that sanctions are warranted pursuant to Rule 37 because there was no substantial justification for Plaintiffs' violation of Rule 26 and the violation caused harm to the Defendants. In particular, the Defendants had already served their four expert reports and deposed five of the eight potential experts in this case. None of these experts were aware of Plaintiff's belated allegation that he had allegedly observed liquid toluene in the drums while handling the print towels.

The Plaintiffs oppose this motion. First, the Plaintiffs argue that in his answers to interrogatories, Steele replied:

Plaintiff exposed on continuous basis to fumes from solvent soaked print-towels due to his job duties that required him to collect and transport spent print-towels from Quad Graphics in West Virginia to Aramark in New Jersey. (Pls.' Ex. B.) The Plaintiff maintains that Steele described the towels as "soaked" and therefore, it should be inferred that there was liquid in the drums. During Mr. Steele's deposition, he was not asked any questions concerning liquid toluene in the drums. The Plaintiffs maintain that it was an oversight of the Defendants not ask Mr. Steele the proper questions at his deposition. The Defendants oppose this argument and maintain that Mr. Steele was not asked these questions in his deposition because Mr. Steele had never alleged he observed liquid in the drums. The Plaintiffs rely on the "What's the Big Deal about Print Towels: The Do's and Don'ts of Print Towel Transport and Processing" pamphlet, distributed in 2009, and argue that Aramark knew there was liquid in the drums at the time Plaintiff handled the drums in 2007.

The Plaintiffs argue the Affidavit should not be excluded. The Plaintiffs contend the information is extremely important to Plaintiffs' case, there is no prejudice to Defendants by allowing Plaintiff's affidavit in evidence, there will be no disruption at trial, any prejudice can be cured by taking the deposition of the Plaintiff anew, and there is no bad faith or willfulness in not disclosing the evidence.

The Plaintiffs state that they failed to disclose this new fact because the issue of whether or not there was free liquid in the containers became highlighted upon the serving of defendant's expert report of James H. Steward, Ph. D. and Dr. Stewart's subsequent deposition which occurred on May 27, 2011. Dr. Stewart first raised the relevance of the West Virginia Shop Towel Policy and it was at this time that Plaintiff's counsel inquired of Plaintiff as to the issue of free liquid in the containers.

B. Analysis

A four-part test is used to determine whether a party breached its duty to amend a discovery response under Rule 26(e)(2): (1) whether there was a prior response; (2) whether the response became materially incorrect or incomplete; (3) whether the party knew that the response was incomplete; and (4) whether the corrective information was otherwise made known to the other party through the discovery process or in writing. Ajax Enters v. Fay, No. 04-4539, 2007 U.S. Dist. LEXIS 38515, *7 (D.N.J. May 15, 2007); Pfizer, Inc. v. Teva Pharms. USA, Inc., No. 04-754, 2006 U.S. dist. LEXIS 74611, *6 (D.N.J. October 13, 2006).

The Plaintiffs do not contest that they failed to amend their discovery response in a timely way and consequently violated Rule 26(e), which requires a party who has responded to an interrogatory to supplement or correct its disclosure in a timely manner. Fed. R. Civ. P. 26(e)(1)(A). However, the Plaintiffs argue that their initial discovery response that the towels were "solvent soaked" was sufficient to put the Defendants on notice that there was also liquid in the drums. This argument is without merit.

A party is continually required to supplement or correct its initial discovery responses if the response is in any way "incomplete or incorrect." Fed. R. Civ. P. 26(e). A party must correct a discovery response in a timely and formal manner unless the corrective information has "otherwise been made known." Fed. R. Civ. P. 26(e). In order to meet the "otherwise made known" standard, the "alleged disclosure must be clear and unambiguous." Eli Lilly & Co. v. Actavis Elizabeth LLC, No. 07-3770, 2010 U.S. Dist. LEXIS 44913, *13 (D.N.J. May 7, 2010)(citing Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 732-33 (7th Cir. 2004)). Courts have declined to impose a duty on an adverse party to infer facts from an ambiguous discovery response. Instead, courts have concluded that "disclosures that require such inferences to be insufficiently clear for Rule 26 purposes." Pfizer, 2006 U.S. Dist. LEXIS 74611 at *9. Importantly, "disclosures during discovery that are not facially apparent and require the drawing of further inferences are insufficient to meet the requirements of Rule 26." Eli Lilly & Co., 2010 U.S. Dist. LEXIS 44913 at *14.

This particular case involves Plaintiff Steele's exposure to toluene while transporting print towels and consequently, the state of the print towels and presence of liquid in the drums are significant, distinct factual inquiries. The interrogatory answer that the towels were "solvent soaked" does not imply that there was also free liquid in the drums. Here, the drums were transporting print towels which were soiled with toluene as the towels were used to clean printing presses. Accordingly, it is not out of the ordinary that the towels themselves would be "soaked" with solvent as Plaintiff Steele's interrogatory answer suggests.

This is wholly different from the allegation that free liquid toluene was in the drums. This allegation implicates West Virginia print shop towel policies and significantly impacts the calculation of Plaintiff Steele's exposure to toluene. Consequently, this factual allegation cannot be inferred from Plaintiff Steele's previous interrogatory answers and the Defendants cannot be deemed to be on notice of such a fact. Therefore, Plaintiff Steele's previous interrogatory answer which stated the drums contained "solvent soaked print-shop towels" became materially incomplete when the Plaintiffs' submitted the letter to their adversaries that Plaintiff Steele was now alleging he saw toluene in the drums. It is also noteworthy that Plaintiff chose the same phrase - "solvent soaked print-shop towels" - as appeared in the 2009 Aramark pamphlet about the handling of such cargo, which term denotes the proper and expected condition of these towels, in contrast to barrels containing free toluene.

The Plaintiffs did not notify the Defendants of their allegedly incomplete interrogatory answer until seven months after factual discovery was closed. This fact was not otherwise disclosed through discovery as Plaintiff Steele did not testify to it during his deposition and this fact was not referenced in any of the four of Plaintiffs' expert reports. Further, the allegation that Plaintiff Steele saw free liquid toluene in drums was a fact wholly within Plaintiff Steele's knowledge during the entire course of this litigation and should have been part of the Plaintiffs' initial discovery responses. By failing to timely inform the Defendants of this crucial fact, the Plaintiffs breached their duty to amend their discovery response under Rule 26(e)(2).

Therefore, the court must decide whether the Plaintiffs will be permitted to use their late amendment to discovery as evidence in opposition to the instant motions for summary judgment and as evidence at trial.

Rule 37(c)(1) provides:

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

The courts have considered the following six factors in determining whether withheld evidence should be excluded:

(1) the importance of the information withheld; (2) the prejudice or surprise to the party against whom the evidence is offered; (3) the likelihood of disruption of the trial; (4) the possibility of curing the prejudice; (5) the explanation for the failure to disclose; and (6) the presence of bad faith or willfulness in not disclosing the evidence.

Pfizer, 2006 U.S. Dist. LEXIS 74611 at *11. See also Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir. 2000)(applying the following four factors to determine whether exclusion of the evidence is an appropriate sanction: (1) surprise to the adverse party; (2) ability of the party to cure the prejudice; (3) extent to which allowing the evidence would disrupt trial; (4) bad faith or willfulness in failing to comply with discovery obligation). The court considers each of these factors.

The notion that Plaintiff now claims he observed liquid toluene, and not just soaked towels, in the barrels is new. As discussed above, claiming the presence of free toluene is not a mere elaboration of the earlier claim of observing solvent-soaked towels.

Here, it is undisputed that the information withheld is very important to the vitality of Plaintiff's case. The fact that the Plaintiff now claims to have observed liquid toluene in the drums is relevant to his negligence action against Quad and may be a significant factor in determining Plaintiff's level of exposure to toluene while handling and transporting the drums.

Similarly, the prejudice and surprise to the Defendants is also great. Defendant would have explored this at Plaintiff's deposition if Plaintiff had timely made this dramatic accusation known. This fact was important and needed to be discussed by their four experts. The late introduction of this fact renders aspects of their four expert opinions and five expert depositions incomplete or even irrelevant because the entire negligence and causation analysis has changed. Plaintiffs would seek leave to supplement their experts' reports to take Mr. Steele's new observations into account. In order to cure the prejudice, the Defendants would at minimum then need to be given an opportunity to develop new rebuttal expert reports and re-depose Plaintiff as well as other fact witnesses, plus, of course, the Plaintiffs' experts.

If this fact is introduced at trial without giving the Defendants an opportunity to conduct further discovery, the trial will be greatly disrupted. This case will be three years old soon and it needs to be tried without further delay. The Plaintiffs' case would become a moving target as to the allegations of chemical exposure more than two years after the case was filed, all due to this belated attempt to inject favorable evidence for the first time. This notion of liquid toluene in the barrels under transport appears in none of the eyewitness depositions of persons familiar with the transport of Quad's print towels, so surprise is obvious.

The Plaintiffs' explanation for failing to disclose this information sooner is lacking. The Plaintiffs first seem to argue that the Defendants should have inferred this fact from the Plaintiffs' interrogatory answers. This argument, as discussed above, is without merit. Second, there is no explanation given for why Plaintiff Steele did not inform his attorneys about the presence of liquid in the drums prior to May 2011. It seems convenient, to say the least, that directly after Defendants served their expert report which discussed the West Virginia Recycle Shop Towel Policy (and how Quad was in complete compliance with the one drop rule), the Plaintiff should suddenly remember that he saw liquid toluene in the drums. This is a fact ...

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